Law prof Jeannie Suk Gersen on the Supreme Court’s affirmative action hearing, and how Harvard and other schools will evade its ruling

November 20, 2022 • 9:30 am

Jeannie Suk Gersen is the John H. Watson, Jr. Professor of Law at Harvard Law School, teaching constitutional law, criminal law and procedure, family law, and the law of art, fashion, and the performing arts. In the free New Yorker article below (click to read), Gersen attended the one-day Supreme Court hearing in which Students for Fair Admission (SFFA) challenged Harvard and the University of North Carolina’s race-based admission practices, which, SFFA argued, discriminated against Asian-American applicants. Gersen’s been writing for the New Yorker for some time, and attended the hearings as a representative of the press.

As you may recall, the way Harvard kept down the number of Asian-American students (thereby giving minorities and whites preferential admission) was by application-readers in the admissions department giving Asians low “personality scores”, which reduced their chance of admission under the “holisitic” system. (Asian Americans also had lower athletic scores manifested as “extracurricular activities, but that wasn’t a bone of contention.)

Curiously, alums who (as part of the admissions process) actually interviewed Asian-American applicants did NOT give them lower “personality scores”, implying that there was some manipulation of scores by the admissions office itself. I believe this is the case, but two lower courts ruled that this did not constitute egregious race-based admission because any discrimination—and yes, the statistics show there was some—was based on “implicit biases. . . that could not be eliminated in a process that must rely on judgments about individuals”. In other words, evidence of anti-Asian American bias was evidence of race-based discrimination, but not evidence of intentional discrimination. (Didn’t the administrators receive “implicit bias” training?)

SFFA appealed all the way up to the Supreme Court, and it’s almost certain that the Court will rule for the plaintiffs, overturning the 1978 Bakke decision and affirmative action itself.

What’s interesting about Gersen’s report are two things: the lack of preparation for the defense on the “personality scores” issue, for which they had no good explanation, and Gersen’s take about how schools like Harvard will circumvent the Court’s likely decision to keep the minority enrollment from decreasing. Gersen, by the way, says she’s a supporter of affirmative action.

The cluelessness of the defense.  Indented bits are quotes from Gersen’s piece. Bolding is mine

The strongest aspect of the discrimination claim against Harvard involves something called the personal rating. As early as 1969, the Crimson reported that the personal rating, assigned by admissions officers based on interviews, high-school officials’ reports, and essays, “has become by far the most important factor in Harvard’s admissions process,” because the increased academic strength of the applicant pool was making it harder to select students based on grades and test scores. It reported that, for the class of 1968, “there is just about no correlation between admission to Harvard and such factors as SAT scores, rank-in-class, and predicted rank list,” but “the correlation between admissions and the personal factor is better than 90 per cent.” The article quoted the dean of admissions saying, “We are justified and obligated to trust a hunch.”

When the Harvard case first went to trial, in 2018, S.F.F.A. alleged that Harvard uses the personal rating, in which admissions officers score applicants on qualities such as “integrity, helpfulness, courage, kindness,” even “effervescence,” to discriminate against Asian American applicants. Admissions records showed that, despite alumni interviewers, who met with applicants, having given Asian students scores that were as high or higher than those of white students, admissions officers, who normally did not meet with applicants, gave Asians the lowest personal ratings of any racial group. The trial, which I attended, focussed on these disconcerting questions: Did Asian students, who had higher academic and extracurricular ratings than white applicants, actually have worse personalities than all others? Or was the personal rating concealing an impermissible racial quota?

At Monday’s arguments, Justice Samuel Alito grilled Harvard about Asians’ low personal ratings. “It has to be one of two things. It has to be that they really do lack integrity, courage, kindness, and empathy to the same degree as students of other races, or there has to be something wrong with this personal score,” he said. “Why are they given a lower score than any other group?” The question was one that Harvard’s lawyer must have been preparing to answer for at least four years. And yet the seasoned Supreme Court advocate Seth Waxman, a former U.S. Solicitor General, seemed cornered and stuck. During several uncomfortable minutes, he at first tried to deflect the question; then, somewhere in the midst of multiple attempts by Alito to get him to answer, an assist from the Chief Justice, and Waxman’s telling assurance, “I’m not trying to filibuster you,” he managed to say that the personal ratings reflect “what teachers said, what guidance counselors said, what these students wrote” in essays. (Those inputs would have to be quite poor to offset the alumni interviewers’ high scores.) In other words, Asian applicants deserved the low personal ratings—or, perhaps, if there was any discrimination, it was by high-school officials, not Harvard.

Surely Waxman, who in general argued well, could have prepared better for Alito’s excellent question. But how could he have? The scores were significantly lower than those for other groups, but were lower only from Harvard officials who never met the applicants, not from those who personally interviewed the applicants. Ergo, blame it on the letters of recommendation. But that’s not a credible answer, nor is the claim that one’s “personality score” could be at all discerned from essays. All the evidence is that Harvard discriminated, supposedly out of “implicit bias.”

How colleges will circumvent the likely ruling.

But the “implicit bias” trope may, says Gersen, be the way that American universities get around the upcoming ruling. While they can’t use racial classification as a criterion for entry, they could use indications of it—not from “personality scores,” but aspects of a more “holistic admissions analysis” that would show racial minorities had compensating virtues, like overcoming difficulties.

It is conceivable that the Court could hold that the district court erred in finding that Harvard did not discriminate against Asians in assigning personal ratings, but such a ruling would not necessarily overrule cases allowing affirmative action; rather, it would mean that Harvard defied the Court’s precedents. It’s more likely that the Court will use this case to end or severely limit affirmative action, without disturbing the district court’s factual conclusion that Asians didn’t suffer intentional discrimination here. Such a decision would not make personal ratings go away, given that Harvard says they are supposed to be assigned without considering race. If the Court prohibits the use of race, so that race-neutral methods become the only permissible means to achieve diversity, schools will likely play with formulas to produce a diverse class in which Asian admissions don’t get unacceptably out of proportion. 

It’s odd that Gersen, an Asian American herself, uses the words “unacceptably out of proportion”, which is invidious and implies a quota for Asians. What proportion of Asians, for example, is the upper bound on “acceptable”?

But what about test scores? Asian-Americans score higher than any other group. Here, from a 2018 story in the Harvard Crimson, is an 18-year series of SAT scores for admitted Harvard students. Asians are way up on top, followed by whites, and with non-Asian minorities together at the lower rank.

A Crimson analysis of the previously confidential dataset — which spans admissions cycles starting with the Class of 2000 and ends with the cycle for the Class of 2017 — revealed that Asian-Americans admitted to Harvard earned an average SAT score of 767 across all sections. Every section of the SAT has a maximum score of 800.

By comparison, white admits earned an average score of 745 across all sections, Hispanic-American admits earned an average of 718, Native-American and Native-Hawaiian admits an average of 712, and African-American admits an average of 704.

And here are Harvard’s own data on the ethnicity of students admitted in the class of 2026.  Without the “personality score” adjustment, the proportion of Asian Americans would be substantially higher and that of everyone else lower (see below):

But the way around this is simply to devalue test scores (and grades), and raise the value of less tangible scores in a way that would benefit minorities. It’s a way to discern “other” characters that aren’t given a metric, like the notorious personality scores.

Gerson explains:

[Harvard] may reduce reliance on race-neutral factors in which Asians have done well, such as standardized tests, and increase reliance on race-neutral factors in which Asians have not done as well. The personal rating and similar mushy factors could become far more determinative, because they are places where admissions officers will continue to have great discretion to bump applicants up or down based on subjective assessments so long as they are not consciously using race. Prohibiting the explicit reliance on race may even push universities to fall back on the cover of implicit bias, which is not unlawful discrimination. This could leave Asian applicants worse off than they are now. If anything, the personal-ratings morass may suggest that what’s needed to check unconscious biases are more transparently and forthrightly race-conscious efforts, not less.

Even the SFFA suggested how this might work:

In the U.N.C. case, Justice Ketanji Brown Jackson worried that if “a university can take into account and value all of the other background and personal characteristics of other applicants, but they can’t value race,” that policy could actively disadvantage minorities who wish to convey the importance of race in their lives. But S.F.F.A. suggested that eliminating affirmative action does not mean disallowing applicants from writing about their racial backgrounds, or blinding admissions officers from knowing the race of an applicant. S.F.F.A.’s lawyer against U.N.C., Patrick Strawbridge, said that, though admissions officers could not credit an applicant’s race, they could credit an applicant’s cultural experience as an African immigrant. Kagan observed, “The race is part of the culture and the culture is part of the race, isn’t it? I mean, that’s slicing the baloney awfully thin.” Cameron Norris, S.F.F.A.’s lawyer against Harvard, said, “Culture, tradition, heritage are all not off-limits for students to talk about and for universities to consider.” He continued, “They can’t read that and say, ‘Oh, this person is Hispanic or Black or Asian, and, therefore, I’m going to credit that.’ They need to credit something unique and individual in what they actually wrote, not race itself.”

It seems that what S.F.F.A. is insisting on is a formal conceptual distinction—between crediting “race itself” and crediting individuals’ stories about their racial backgrounds—that makes little practical difference. If the Court issues a ruling that tracks with this idea, then, after affirmative action is gone, schools will not give any applicant a plus for “race itself,” but they will still consider race in the context of an applicant’s story.

. . . Justice Sonia Sotomayor made the point most plainly, saying that relying on race-neutral alternatives, including socioeconomic status, are really “all subterfuges to reaching some sort of diversity in race.” She echoed Justice Ruth Bader Ginsburg’s dissent in Gratz v. Bollinger, the 2003 case in which the Court held that a school could not automatically award extra points to underrepresented racial minorities. Ginsburg anticipated that what universities cannot do “in full candor,” they “may resort to camouflage” to accomplish: “For example, schools may encourage applicants to write of their cultural traditions in the essays they submit, or to indicate whether English is their second language. Seeking to improve their chances for admission, applicants may highlight the minority group associations to which they belong, or the Hispanic surnames of their mothers or grandparents.

As Gersen says, this is a distinction without a difference. And I’m not sure how colleges can evaluate intangible factors without giving them a ranking, but the Supreme Court may, in its ruling, even forestall this possibility by prohibiting “implicit bias” if there’s a statistical way to judge it (i.e., ratings of some sort).  If those ratings happen to be correlated with race—as were the personality scores—then again we have unacceptable evidence for race-based admissions.

I’m still struggling with the issue of affirmative action, which I have favored, and Gersen’s essay didn’t help. One thing I know, though, is that the concept of an “unacceptably high” proportion of Asians (or of any race) is revolting. It’s a return to the old quota system, but with the quotas remaining implicit. One thing we know, though is that 43% of the student body being Asian is “unacceptably high”. On the other hand, schools lacking minorities don’t speak well of America. (Some like John McWhorter say that this is okay: those who required affirmative action for admission could simply go to colleges with less strict criteria for admission.)

This is from the Guardian (link above):

The lawsuit claims that, in 2013, Harvard killed an internal report about its admissions policies which acknowledged that it discriminates against prospective Asian American students.

The report found that Asian Americans would comprise 43% of admissions if only academic qualifications were considered and 26% when extracurricular activities and personal ratings were considered. Yet at the time the research was conducted, Asian Americans made up 19% of the share of admitted students. [JAC: see data above: the figure is now 27.9%.]

I have been favoring socioeconomic factors as things to consider during admissions. This would raise the proportion of minority students, I think. Sotomayor says this is just a “subterfuge”—a “back door” way of boosting minority attendance. But I think you can justify socioeconomic factors as being worthy of consideration on their own: as a way to raise the diversity not of ethnicity, but of social class and wealth. It’s a way of achieving class rather than racial equity, but they’re correlated.

Two things are certain. The court will rule, probably 6-3, for the plaintiffs, thereby killing affirmative action. But also certain is that affirmative action will rise from the dead as colleges figure out ways around the Court’s ruling so to achieve what they consider “acceptable” balance. After all, much of the administration of American colleges is involved in DEI efforts, and a reduction in the number of minorities could cost people their jobs. Given the elaborate DEI structure in many schools, downsizing it will be unacceptable.